This post is part of a series on Yochai Benkler’s recent article, Structure and Legitimation in Capitalism. Read the rest of the posts here.
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In these pages, I have previously defended the pluralist approach to legal and institutional analysis that characterizes much LPE scholarship. Yet I appreciate Yochai Benkler’s recent effort to articulate one explicit model of political economy, and I think he is right to insist on the value of getting clear about key terms. This strikes me as especially important as a counterweight to a dynamic of episodic conceptual drift and accretion. LPE is often described by critics and participants alike as cohering around an overlapping set of political views as much as it does around a method. Episodic shifts in coalitional emphasis are a bad foundation for methodological development. Some of us have at times followed in the hundred-plus-year tradition of Legal Realism in arguing that certain methods sometimes taken as neutral turn out to have a politics; but even the strong view that every method has a politics doesn’t mean that having a politics counts as having a method.
The basic definition of capitalism that Benkler adopts—universal market dependence alongside market freedom—has much to recommend it. It captures foundational features of common life without getting into contentious theoretical disputes. It also sets a clear agenda for legal analysis, one that follows and updates Hale, by directing attention to the allocation of bargaining power through a variety of legal regimes. If we have to bargain (or buy our way out of bargaining) for all that we need, law comes into view as an architecture of the bargaining landscape. Labor and employment law have plain relevance here, but so do the laws concerning public benefits, the funding of education at all levels, and access to health care, to name a few. Together, these define the units (individuals, unions, sectors) and outer bounds (minimum wages, bans on retaliation, limits on firing) of certain key bargains, while affecting the parties’ alternatives by (de)commodifying key needs. The bargaining situation looks different if health care isn’t conditional on employment, or if most college graduates aren’t carrying large debt loads, or even if those debt loads are dischargeable in bankruptcy. In other words, a focus on “universal market dependence” invites the follow-up question, “Which market?” and law contributes a lot to the answer. To my mind, this has always been one of the central aims of LPE and of earlier work that David Grewal, Amy Kapczynski, Sabeel Rahman, and I drew on in our 2020 piece: the revival of the question of how law structures economic capacity and dependence.
I also find helpful Benkler’s emphasis on rent-seeking as the basic dynamic of capitalist competition: whether in technological advantage (perhaps with an IP boost), scale advantage (perhaps with a boost from antitrust (non)enforcement), or the kinds of regulatory or fiscal favor persistently at stake in what Robert Brenner and Dylan Roberts have called “political capitalism,” actual market strategies display the view that, in Peter Thiel’s words, competition is for losers. As my earlier parentheticals about IP and antitrust are intended to highlight, many legal questions arise from this theoretical description of a capitalist economy. Early writers on LPE have properly taken some criticism for phrasing that suggested we thought “law makes the economy” in a too-simple fashion. The themes that emerge from Benkler’s framing underscores that while law will play a key role in shaping the basic features of any economy, its influence will be shaped and constrained by broader material contexts (nature and technology) and contending cultural outlooks. And this without considering its role in determining who is authorized to create money (and therefore selectively to inject large doses of power into the economy) and how public debt structures the relationship of the state to some of its largest funders.
In thinking about this conception law’s role in capitalism, one question I have concerns the degree of autonomy that Benkler imagines the political order having vis-à-vis the economic order. This is, of course, a perennial question in social theory, political economy, etc. If (in cartoon phrasing) LPE asserts that law makes the economy and politics makes law, but the economy also significantly constrains politics, then there is less space for what (I think) drew the four co-authors to write on LPE in the first place: Law’s potential role in advancing democratic efforts to shape the terms of common life. Benkler tells us that law plays its shaping role in market society “because capitalism introduced a distinctive distribution of class power and wealth that has required some form of oligarchic republic ever since the medieval mercantile republics of Northern Italy.” Benkler goes on to spell this out further, but to my mind the theoretical picture suggested by the phrasing is something like “ECONOMY -> politics -> law -> economy,” with all-caps ECONOMY being capitalism and lower-case “economy” being some range of variation within limited political control. In this picture, politics enjoys some autonomy, meaning law may structure the market within some affordances, but these margins of freedom are downstream of some material facts about the economy which are primary. I wonder whether this is indeed Benkler’s general view. (I also wonder what it suggests about how to classify, say, China today. Looking at that regime of intensive market exposure for ordinary people, intensive state control of the economy’s general direction, and a fraught relationship between economic and political-military elites, I am not sure why I shouldn’t call it capitalist, while I am quite sure that its economic order doesn’t seem to require an oligarchic republic.)
It’s easy, of course, to prescind to this level of theoretical abstraction in posing questions. Satisfactory answers—which must be non-dogmatic answers—come vastly harder. This is a large part of the reason that I have defended theoretical pluralism as a pragmatic matter: these issues are extremely deep and elusive. Nonetheless, Benkler has taken us to this ground, and I am interested in his thoughts.
A second question I have about Benkler’s account concerns culture. But to get to it, I want to point to the “political” in political economy. In our 2020 YLJ piece, my co-authors and I identified “democracy” as the normative anchor of our project, and we said a few broad things about what we meant by that, including the traceability of key public decisions to the expressed judgment of majorities in a community of political equals. I think there remains a lot of room to think critically about the meaning of democracy. Sometimes, scholars writing in the LPE space associate the term with specific and robust substantive progressive commitments. Other treatments are more concerned with understanding the procedures that render political decisions, or the larger institutional context in which those take place. There are extremely interesting questions of institutional design concerning everything from enfranchisement to party regulation to district design to vote aggregation that entail varying versions of “the people” and its decisions. Sabeel Rahman’s major book before we wrote together on LPE, and my major book-length follow-up to the LPE project, are both theoretical and institutional treatments of democracy. But it is my impression that none of this has been taken as core to LPE, which puzzles me.
So it’s with that perceived lacuna in view that I want to ask how Benkler thinks about the cultural side of his picture. That is, I want to ask about culture as a condition of politics. In his description, I take culture to be important, and to appear in a consistently externalist light. Law, we are told, plays a part in legitimating economic arrangements as part of the ideological background that defines the outlook of well-socialized individuals (particularly within the legal profession), where socialization means the internalization of such ideologically-laden norms. As far as I can tell, ideas are mainly working here as a muffled expression of clashing underlying forces in the same sort of base-superstructure model that seems to be suggested in the passage I quoted earlier about capitalism requiring an oligarchic republic. (That may, of course, be a too-simplifying description on my part.)
There are, of course, various ways of thinking about culture even within the broadly materialist tradition in which Benkler writes here. Perry Anderson, for instance, has described ideas in ways that suggest (though he does not use) the Weberian image of switchmen on the railroad tracks of history. On his account, culture comes into its own in times of crisis, when more material drivers (technological changes, related shifts in economic and military power) throw one regime into disorder and there is an open question as to what happens next.
By contrast, the “cultural materialist” Raymond Williams treated culture as among the engines of history. In his view, the ways we see one another and understand ourselves, the pictures of the world that we carry, and the “structures of feeling” in which we relate all deeply condition what we can do together, signally including the potentials and limits of our politics. These elements of culture aren’t autonomous, of course: They arise in good part from how we physically live and work together and, especially, how we communicate—how we jointly interpret the world—which in our time is deeply influenced by technological form and by legal structures of ownership and control. Think of broadcast networks, media platforms, attention-gripping algorithms, each a technological fact set within a web of regulation (or the pseudo non-regulation of laissez-faire). Much of our present culture of epistemic fragmentation, political animosity, and generalized mistrust is a side-effect of profit-seeking under these conditions, and of prior decisions to set profit-seeking as the organizing principle for the relevant technologies. But despite these aspects of material determination, the mutual interpretation that makes culture remains one of our key resources of freedom, and a necessary condition of any solidaristic politics.
These are very abstract considerations, but Benkler’s article, refreshingly, moves on a level of abstraction that invites them. For my part, I have come to think that a collapse in trust seriously impedes the prospects of the sorts of legal-political reforms that many readers of this blog think would make for a more democratic and humane society. I have also come to think that we should regard the resources of culture—a shared imaginary, you might say, or a structure of feeling—in the light of the “false commodities” that Karl Polanyi highlighted. Polanyi, recall, argued that money, the natural world, and social reproduction were all necessary conditions of common life which, if they were treated as commodities and therefore governed by conditions of profit, might break down and undermine common life generally. Although the specifics of his arguments are not always satisfactory, he was broadly right about this. We might think of culture in the same way. Ours is now pervasively commodified, from the biggest-budget spectacles to the algorithm-driven micro-interactions that have replaced so much of face-to-face socialization. We are living (or trying to live) with the results.
In making these points, I am of course bringing up some of my own preoccupations; but I am also pointing back to Benkler’s pathbreaking work as a theorist of the interplay of technology and culture. Changing technological affordances for the terms of cooperation, he charismatically argued around the turn of the century, could enable people to do different things in different ways, and for a different mix of motives. While his work was always (like the present article) analytic at its core, a rich imaginative sensibility ran through all the branches of that “free culture” moment. Given new forms of cooperation, who would we be to one another? The same questions have a bleaker, or at least more ambiguous, face today in these broader discussions of what is ultimately the same set of themes: what terms of cooperation we can achieve under our various constraints and affordances? Who we take ourselves to be to one another strikes me as being among those constraints and affordances, as well as a question that is part of the prize of achieving new affordances. I wonder how Benkler, who has thought so much about technological and legal form on the one hand and communication and (by implication) culture on the other, is thinking about these questions.
